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I’ve written several posts (the latest one here) about the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving in violation of G.S. 20-138.1. A limited driving privilege is a judgment issued in the discretion of the court authorizing a person with a revoked driver’s license to drive, for limited purposes and at limited times, during the period of the revocation. As none of the earlier posts discussed the circumstances in which a person who is convicted of impaired driving in another state or in federal court may obtain a limited driving privilege from a North Carolina court, this one will.

G.S. 20-179.3(b) provides that a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction that is substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if he or she would have been eligible for it had the conviction occurred in North Carolina. You can read more here about the eligibility requirements for North Carolina DWI convictions. In general, they require that the person (1) have been punished at Level Three, Four, or Five, (2) have been validly licensed at the time of the offense, (3) not have a qualifying prior impaired driving conviction, (4) not have a subsequent conviction or unresolved charge for impaired driving, and (5) have a substance abuse assessment and furnish proof of financial responsibility. Even if a person’s out of state conviction satisfies the “substantially similar” criteria and the person meets the enumerated eligibility requirements, the person still must demonstrate that his or her North Carolina driver’s license was revoked, a requirement that significantly reduces the universe of eligible persons.

A few examples might help demonstrate the impact of this limitation.

Howard Henderson: An NC resident with an out-of-state DWI conviction

Suppose that Howard Henderson, a North Carolina resident with a North Carolina driver’s license, drives while impaired while vacationing in Pennsylvania. Henderson subsequently is convicted in Pennsylvania of driving while impaired. Pennsylvania, one of the 46 states that is a member of the Drivers License Compact, reports the conviction to the North Carolina Division of Motor Vehicles (NC DMV). See 75 Pa. Cons. Stat. Ann. § 1581 (West) (requiring the “licensing authority of a party state [to] report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee”); cf.G.S. 20-4.24(a) (requiring that member states report a conviction for “[d]riving a motor vehicle while impaired”).

After receiving the report, NC DMV revokes Henderson’s driver’s license pursuant to G.S. 20-4.24(b), which requires that North Carolina give the same effect to a report of a conviction in a member state of driving a motor vehicle while impaired that it would give to a North Carolina conviction of impaired driving, and G.S. 20-17(a)(2), which requires NC DMV to revoke the license of any driver upon receiving a record for his conviction of impaired driving under G.S. 20-138.1. Cf. Hoenisch v. Com., Dept. of Transp., Bureau of Driver Licensing, 785 A.2d 969, 973 (Pa. 2001) (concluding that a conviction under G.S. 20-138.1 provides a sufficient basis for a reciprocal driver’s license suspension in Pennsylvania).

Given that Henderson’s North Carolina driver’s license was revoked, he is eligible for a limited driving privilege under G.S. 20-179.3 if meets the other eligibility requirements noted above. Henderson must file his application for a privilege with the clerk in duplicate, and a hearing on his application may be held a reasonable time after the clerk files a copy of the application with the district attorney’s office. G.S. 20-179.3(d).

The North Carolina Administrative Office of the Courts (AOC) has created a form petition for seeking such a limited privilege, AOC-CV-350, as well as a form privilege, AOC-CV-352. Because there is no existing North Carolina criminal case for such petitions to accompany, the AOC has directed clerks to establish these sorts of limited driving petitions as civil cases and to collect the appropriate civil filing fees. (I am hoping that our fearless blog leader, Professor Welty, has stopped reading by now. Otherwise he may kick this entire piece off the criminal law blog.)

Since Henderson was convicted of impaired driving in a jurisdiction other than North Carolina, the hearing must be scheduled before the chief district court judge of the district court district in which Henderson resides. G.S. 20-179.3(d). If the Pennsylvania court imposed a term of nonoperation of a motor vehicle, then Henderson may apply for the limited driving privilege only after having completed at least sixty days of that term. G.S. 20-179.3(c).

Howard Henderson 2.0: An NC resident with an out-of-state DWI conviction in his former home state

Suppose, however, that Henderson was a Pennsylvania resident licensed in Pennsylvania at the time he drove while impaired. Assume further that Henderson’s alcohol concentration at the time he drove while impaired was 0.10, which resulted in a one-year revocation of his Pennsylvania driver’s license. See 75 Pa. Cons. Stat. Ann. § 3804(e) (West). Pennsylvania will not report Henderson’s conviction to any other state, since Henderson is a Pennsylvania resident with a Pennsylvania driver’s license. Suppose Henderson moves to North Carolina two months after his Pennsylvania conviction for impaired driving. Henderson is ineligible to obtain a North Carolina driver’s license because of the Pennsylvania revocation. See G.S. 20-4.25 (prohibiting member state from issuing a license if the applicant has held a license in another member state that has been revoked and the revocation period has not ended). And Henderson will not be eligible for a limited driving privilege under G.S. 20-179.3 because, even though he has no North Carolina driver’s license and no reciprocal privilege to drive in North Carolina, his North Carolina driving privileges have not been revoked. Cf.20-22 (permitting NC DMV to revoke the driving privileges of nonresidents “in like manner and for like cause as a driver’s license” issued by NC DMV); G.S. 20-23.1 (permitting NC DMV to revoke the operating privileges of a person who does not have a driver’s license “in like manner as it could suspend or revoke his license if such person held a driver’s license”).

Charlene Connor: An NC resident with a federal DWI conviction

Consider next the circumstances of Charlene Connor, a North Carolina resident with a North Carolina driver’s license who is convicted in federal court of driving while impaired on the military base at Fort Bragg. See 18 U.S.C. § 13 (assimilating state law crimes for areas within federal jurisdiction). Upon receiving notice of Connor’s conviction, NC DMV is authorized to revoke Connor’s license. SeeG.S. 20-23.2. As a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction, Connor is eligible, upon satisfying other requirements, to obtain a limited driving privilege under G.S. 20-179.3. Her application, like Henderson’s in the first example above, must be filed with the chief district court judge in the district in which she resides.

Charlene Connor: An out-of-state resident with a federal DWI conviction

Next suppose that Ms. Connor is an active-duty soldier stationed at Fort Bragg, who is licensed to drive by her home state of Texas. In this example, Connor is ineligible to obtain a limited driving privilege under G.S. 20-179.3 following her conviction of impaired driving in federal court because her North Carolina driving privileges have not been revoked. Perhaps Connor could spur NC DMV to act to revoke her driving privileges as a nonresident under G.S. 20-22 and thereby render herself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution.

Practitioners: Have your say

Practitioners, is the eligibility gap that I have identified above significant in practice? Have you attempted to gain driving privileges for Henderson and Connor 2.0 in the examples above? If so, please use the comment feature to share your on-the-ground perspective.

Frank

November 30, 2012 at 8:28 am

I am curious as to your thoughts upon Henderson 3.0. Henderson is a PA resident and licensee who is enrolled in a NC University as a full time student-possibly exempt from NC licensure (20-8). Celebrating his arrival to NC, he is arrested for DWI in NC and incurs a Civil Revocation (CVR) pursuant to 20-16.5.
1) Is he eligible for a Limited Driving Privilege (LDP) during a portion of the CVR pursuant to 20-16.5?
2)Upon conviction in NC for the DWI as a Level 5 offender(and as a PA licensee): Is he eligible for a LDP under 20-179.3?
3)Suppose Henderson after satisfying the CVR and prior to conviction as a Level 5 offender, becomes licensed in NC, is he eligible for a LDP pursuant to 20-179.3? Thanks

Shea Denning

December 12, 2012 at 9:43 am

Frank: Below are my thoughts on Henderson 3.0.
1. Yes, assuming he meets the criteria set forth in G.S. 20-16.5(p).
2. Yes, assuming he has not been convicted of an offense involving impaired driving within the previous 7 years, has no subsequent charges or convictions for an offense involving impaired driving, and has obtained and filed with the court a substance abuse assessment.
3. Yes, assuming he meets the criteria listed in #2 above.

Ron Woody

January 13, 2013 at 9:43 am

I need help!
I plead guilty to Felony DUI in SC on December 13 General Sessions Court upon advisement of my attorney.

I have read everything I can find to read on my ability to recieve a hearing to find a way to be able to drive to my work. I have talk to many at the DMV….the Administrative Law Court and their department Of Motor Vehicle Hearings. All I am recieving is conficting information.

Please advise me of where I can get some exact advise on this matter.
There is no money left for an attorney.
Thank you

Richard

September 4, 2013 at 11:30 am

My license were suspended due to a DWI in NC and I was granted a limited license. I just received a job offer out of state to move next month, will my limited license be transferred to the new state since it was for work purposes? I have been told I may be able to get it transferred with proof of the new job, but others have told me to not even waste my time on getting the limited license because they will only work in NC.

Chad Bashir

November 9, 2013 at 12:21 am

I have a New York dmv license and was cited for a dwai offense in New York with a bac of .06. I have not been convicted of this or any previous or subsequent offense even after a passage of 13 months of this offense. My case is scheduled for hearing in 2 weeks. Meanwhile I have moved to North Carolina as my job relocated me here. I now have a North Carolina drivers license. If I get convicted with my license being suspended in NY what are the implications of this suspension on my now NC license. Will I still be able to drive on my NC license and if not can I get a provisional or limited license to drive to work etc. Please help answer my worry.

Linda

Ellen Stone

June 15, 2018 at 6:38 pm

I had 2 DUI’S in Michigan in 2004, I plan on moving to NC between 2018-2020. However, I literally, I haven’t driven in 14 years because you have to jump threw the 3rd circle of hell to get your DL back in this state after 2. (And I worked as a paralegal for over 20 years.) So, can I move to NC, and get a valid DL there? I have paid all my driver’s responsibility fees here (over $4K) and all my probation years ago. I’m just not dropping another 5K here to possibly get “denied”.

john

April 6, 2015 at 2:13 am

HI, My license is suspended in pa. what state can I get a license in?
I know that there are 4 states not part of the dlc.
I have kids and need to drive my kids to day care. I am willing to move to any state and work on finding a new job before I do so I can drive.
Please help.

My name is Bob Clark, paralegal at Denver DUI attorney James Forslund. Our firm has a unique service offering to help clients get a Colorado driver’s license despite holds, revocations, suspensions – even lifetime bans – in their home state. For non-compact state license holds, it is usually a one-day process to get a Colorado license. More importantly, not one of the qualified clients we have taken through the complete process has EVER been denied a license. The URL to our web page describing this service offering is: http://colorado-dui.com/parts/driverlicensecompact.html. I am writing to extend an invitation to you to refer any of your clients who have exhausted their appeal remedies and still can’t get a driver’s license to visit our website. The process takes 6 to 8 weeks and we charge a flat fee of $1,200.

MARIA STASIAK

Justin

January 10, 2018 at 5:46 pm

I have a friend inquiring about a NC restricted license. He had a 4th dwi in NJ. He is thinking of moving to NC and getting a restricted license in order to work. What is the process for getting a restrictive licence.

Bradley franklin

Dustin

October 2, 2018 at 1:57 pm

Say I lived in NC 20+ years ago got DUI and had NC license. I had to move to OH and had OH license for 20+years. Now my license expired and they will not renew due to NC issues. I do not plan on ever going to NC. I attended rehab in OH but the facility does not keep records for 20 years. Do I need to go through the OH process for DUI or NC? How can I get my license back in OH?

David

December 7, 2018 at 4:46 pm

Dustin,

Unfortunately, you’ll have to deal with the nightmare that is the NC DMV. You’ll have to file to have a hearing to remove your name from the NDR list. It’s a $400 filing fee as of 2018. And your best bet to have the DMV hearing go in your favor is to attend it in person. You can opt to mail in affidavits and evidence, but the DMV office will, 99% of the time, rule against you. Gotta love a non elected bureaucrat deciding your fate in a hearing that doesn’t conform to legal and procedural norms of a courtroom. My point – the NC DMV sucks, period. Their laws are so incredibly arcane and NOT driver/citizen friendly. And they are quick to suspend your license for any thing. Just consider this – my speeding ticket a few years ago in Onslow County was about $65. The court costs? $188. YES. The COURT COSTS were roughly TRIPLE the actual fine. That should speak for itself. The NC DMV and all it’s traffic laws are a sham, enforced by “the good ‘ole boy” system. NC residents should be ashamed. Glad I don’t live there anymore.